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A recent ruling by the Texas Supreme Court struck a blow for a jury’s right to decide certain civil cases, some legal experts say. In Lozano v. Lozano, the court held that a jury can reach a conclusion based on circumstantial evidence, even if more than one reasonable inference could be drawn. After a four-paragraph per curiam opinion, the court goes to the heart of the matter in various concurring and dissenting opinions. “A jury is entitled to consider the circumstantial evidence, weigh witnesses’ credibility and make reasonable inferences from the evidence it chooses to believe,” Chief Justice Tom Phillips said in a concurring and dissenting opinion. Phillips’ opinion also admonished the courts not to second-guess juries. “If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable, subject only to review by the trial court and the court of appeals to assure that such evidence is factually sufficient,” Phillips said in the opinion. Joining Phillips in most of the opinion were Justices Craig Enoch, Deborah Hankinson, James Baker and Greg Abbott and former Justice Al Gonzales. One law professor says he believes that the ruling represents a turnaround by the court’s majority on the “equal inference” rule, which has been used to block juries from hearing conflicting circumstantial evidence cases. “This is a pretty flat-out rejection of a rule that had limited utility and had gotten in the ascendancy by accident,” says Bill Dorsaneo, who teaches at Southern Methodist University School of Law. Justice Nathan Hecht, in a separate concurring and dissenting opinion, says the majority acknowledges the equal inference rule, “but then in a remarkable semantical sleight, abolishes it.” Justice Priscilla Owen joined him in the opinion. Hecht contended that the rule “expressly requires that an accepted inference not only be reasonable but that it be probable.” The concept became the law in Texas when the supreme court applied it in Hammerly Oaks Inc. v. Edwards in 1997. In that case, a resident had sued an apartment complex after being brutally assaulted. The resident alleged that a leasing agent at the complex failed to warn him that a carpet cleaner had said he planned to beat up the person who had stolen his cleaning equipment. The jury in Hammerly awarded the resident more than $500,000, including $375,000 in punitive damages. In a 9-0 decision, the supreme court held that one could not conclude from the facts presented that the agent acted for the complex’s owner. A jury may not infer fact from meager circumstantial evidence that could give rise to any number of inferences, none of them more probable than another, the court said in overturning the award. TRUSTING IN JURIES Dorsaneo, who filed an amicus brief in Lozano, says it is possible to draw more than one conclusion in a great many cases and the reason people go to the courthouse is to resolve such differences. “That’s what a jury is for,” he says. Paula Sweeney, a partner in Howie & Sweeney in Dallas and president of Dallas ABOTA (American Board of Trial Advocates), says the supreme court’s decision re-emphasizes the importance of giving deference to jury verdicts. “It re-emphasizes that the majority of this court does respect jury opinions,” she says. Dan Benson, a Texas Tech University School of Law professor, says he believes that the court’s decision reinterprets the equal inference rule rather than rejecting it. “I think it’s going in the right direction,” Benson says of the decision. “You have to trust juries.” Others have adopted a wait-and-see attitude about the impact that the decision will have. “There’s a possibility this means there’s a change in the [equal inference] rule,” says Tom Watkins, a partner in Austin’s Hilgers & Watkins. “I’m going to have to see some other cases before I’m sure of it.” Watkins says until he sees how the court rules in other conflicting circumstantial evidence cases, he won’t know whether Lozano represents a major change. Alex Wilson Albright, a professor at the University of Texas School of Law, is also unsure about the effect of the decision. While all the justices agree there is legally sufficient evidence to uphold part of the jury’s verdict, Albright says that there is a lot of disagreement among them on some points. “We’ll see how it plays out in other cases,” she says. WITHOUT A TRACE The case was brought by a Baytown woman who accused her ex-husband’s family of aiding him in the abduction of their daughter. The couple was involved in a child custody battle at the time, court records indicate. According to Phillips’ opinion, Juan Antonio Lozano Jr. picked up the child, then 20 months old, from the home of his former wife’s parents on April 7, 1995, and took her to his parents’ home. The two disappeared from the home during the weekend, and Lozano called his mother that Sunday to say he wasn’t coming home, the opinion said. The opinion said Lozano apparently went to Houston, where he cashed a $1,000 check that had been given to him three weeks earlier by a sister. The child’s mother, Deana Ann Lozano, began calling the home on Sunday evening and finally was asked not to call again. When she couldn’t get information about the child’s whereabouts, the woman sued her former in-laws in May 1995. Citing financial transactions by various family members following the child’s disappearance, she alleged that they were providing money to her ex-husband. She also alleged that the family’s actions — including removing posters with pictures of the ex-husband and child — hampered efforts to find the child. A 280th District Court jury awarded Deana Lozano $1 million against the defendants, jointly and severally, and an additional $1.2 million in punitive damages assessed against the various defendants individually. Judge Tom Lindsay signed the final judgment in accordance with the jury’s findings on Aug. 30, 1996. The verdict was reversed on a 2-1 ruling by the 14th Court of Appeals, which held that there was no evidence to support the jury’s finding regarding the involvement of any of the family members. Justice John Anderson wrote the opinion in which he was joined by Justice Harriet O’Neill, now a member of the state supreme court. Former Justice Norman Lee dissented. The supreme court, with O’Neill not participating, held on Dec. 14 that there is some evidence to support the jury’s determination that three of the family members assisted the ex-husband. That portion of the case was sent back to the appeals court for a factual review of the evidence. However, the court held there is no evidence that two of the family members — Juan Lozano’s father and a sister — were involved in the child’s disappearance and affirmed the appeals court’s judgment that the plaintiff take nothing from them. The justices had varying opinions about the sufficiency of evidence against various family members. Although they disagreed on the application of the equal inference rule, Phillips and Hecht said the evidence was sufficient to hold only Juan Lozano’s mother liable. Baker found the evidence sufficient to support the jury’s verdict against every member of the family except the father. Ron Restrepo, who represents the family members, says he has refiled a motion for rehearing with the court because the original document was returned and he expects the court to accept it, although the deadline was Jan. 16. He says the motion cites concerns about Baker’s contention that an individual can be held liable even though she made an unsuccessful attempt at assistance. Restrepo, a partner in Doyle, Restrepo, Harvin & Robbins in Houston, alleges that Monica Lozano, one of the sisters, removed one of approximately 1,000 posters that featured the pictures of the missing father and child. That action could cost her $1.2 million, he says. Reba Eichelberger of Baytown, who along with her son, Paul Koenig, represents Deana Lozano, has little sympathy for the family. Eichelberger alleges that family members pulled down posters from sites all over Baytown. “Literally thousands of posters were put up, and they were gone the next day,” she says. Eichelberger, a partner in Eichelberger & Koenig, says the now 7-year-old child remains missing and is believed to be in Mexico. Eichelberger says Deana Lozano “has not heard one word from her child, not a single word.”

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